Court of Appeals of Missouri, Eastern District, Second Division
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Appeal from the City of St. Louis Circuit Court. Honorable Rex M. Burlison.
FOR APPELLANT: Jessica Hathaway, Missouri Public Defender Office, St. Louis, Missouri.
FOR RESPONDENT: Karen L. Kramer, Assistant Attorney General, Jefferson City, Missouri.
Philip M. Hess, Judge.
Ivan Dominguez-Rodriguez (Defendant) appeals the judgment and sentence of the Circuit Court of the City of St. Louis entered after a jury convicted him of first-degree assault, armed criminal action, and first-degree burglary. In four points relied on, Defendant claims that the trial court (1) plainly erred in submitting Instruction No. 9 for armed criminal action; (2) clearly erred in overruling his Batson  objections to the prosecutor's strikes of two African-American venirepersons; and (3) abused its discretion by permitting the prosecutor to argue in closing argument that Defendant was " hiding behind" his Spanish interpreter. We affirm.
In the early morning hours of August 20, 2012, Defendant entered B.J.'s (Victim's) home through the back door. Defendant choked her, beat Victim's head and body with his fists, and beat her on the head with a " very, very hard" object, which Victim later realized to be her hair straightener. Defendant was silent during the attack and did not respond when Victim asked him what he wanted. Eventually, Defendant fled Victim's home, scaling a chain link fence in her back yard. As a result of the attack, Victim suffered lacerations to her head, a broken jawbone and cheekbone, four broken ribs, a lacerated and collapsed lung, a lacerated spleen, a gash on her knee, and a broken finger.
Defendant was subsequently arrested and charged with first-degree assault, armed criminal action based on the first-degree assault charge, and first-degree burglary. At trial, the State produced DNA evidence showing that blood smears found outside Victim's home matched that of the Victim. The State also produced evidence showing that DNA found on the pants Defendant wore on the night of the assault, as well as DNA found on Defendant's flip flop and stocking cap, matched Victim. In his defense, Defendant testified, with the aid of a Spanish interpreter, that he had been drinking the day before the assault and, upon returning to his home, had continued to drink and had fought with his girlfriend over the phone. Defendant further testified that he entered the back door of Victim's home believing it to be his own and when he saw Victim lying on the floor bleeding, he fled.
The jury found Defendant guilty of the crimes charged. The trial court adopted the jury's sentencing recommendation and sentenced Defendant to consecutive terms of 25 years' imprisonment for first-degree assault, five years' imprisonment for armed criminal action, and eight years' imprisonment for first-degree burglary. Defendant appeals.
Point I: Instructional Error
In his first point relied on, Defendant claims the trial court plainly erred in submitting Instruction No. 9 for armed criminal action because " because (1) the submitted instruction did not specify the 'dangerous instrument' charged; (2) the State argued that either a hand or a hair straightener could be this dangerous instrument; (3) a hand is not a dangerous instrument; (4) the instruction did not did not ensure that the jury would unanimously convict Appellant of the same conduct[; ] (5) whether the victim was struck by a hand or other object was a disputed fact at trial; (6) the lack of a unanimous verdict for the crime of armed criminal action caused a manifest injustice and resulted in a consecutive sentence of five years." In the argument portion of his brief, Defendant explains that Instruction No. 9, which is patterned on Missouri Approved Instruction-Criminal (MAI-CR 3d) 332.02, is not in conformity with this Court's recent decision in State v. Evans, 455 S.W.3d 452 (Mo. App. E.D. 2014), and, under certain factual circumstances like the instant matter, allows for verdicts that are not unanimous. The State responds that plain error review is precluded in this case, given that Instruction No. 9 is patterned on the MAI. Even assuming that plain error review is available, the State asserts that the trial court did not plainly err by submitting Instruction No. 9 to the jury.
Standard of Review
During the instruction conference, the State proffered Instruction No. 9, which the parties do not dispute is based on MAI-CR 3d 332.02. When the trial court asked defense counsel whether Defendant had any objection, counsel responded " no." Subsequently, the trial court submitted Instruction No. 9 to the jury, which provided:
As to Count II [armed criminal action], if you find and believe from the evidence beyond a reasonable doubt:
First, that defendant is guilty of the offense of assault in the first degree, as submitted in Instruction No. 5, and
Second, that defendant committed that offense by or with or through the knowing use or assistance or aid of a dangerous instrument,
then you will find the defendant guilty under Count II of armed criminal action.
As used in this instruction, the term " dangerous instrument" means any instrument, article, or substance that, under the circumstances in which it is used, is readily capable of causing ...